- (1.) THE instant writ petition is a unique example wherein neither the Statutory Authorities nor the Court had ever passed the order considering the law in correct perspective. When impugned order was challenged in appeal as well as in writ petition, the writ petition was disposed of issuing direction to the Appellate Authority to decide the appeal on merits without realising that the appeal itself was not maintainable and the Appellate Authority, in compliance of the order of this Court, decided the appeal on merits. THE order of the Appellate Authority is under challenge before this Court. In a similar manner, the Executive, without realising the seriousness of the order passed earlier by this Court and pendency of the appeal as well as writ petition, resorted to disciplinary proceedings and passed order imposing punishment without waiting for final disposal of the writ petition or appeal.
(2.) THE facts and circumstances giving rise to this case are that petitioner was appointed as Police Constable on probation vide order dated 19.6.90. During probation, he picked up quarrel with another trainee constable Mr. Ram Chandra on 20.9.91. THE appointing authority, vide order dated 24.1.92 (Annx.1), discharged petitioner from service being a probationer without holding any inquiry in respect of the incident dated 20.9.91 though that was the basis for discharge. THE said order of discharge dated 24.1.92 was challenged by petitioner by preferring an appeal before the Deputy Inspector General of Police under rule 23 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, "the Rules"), as well as by filing Writ Petition No., 2227/1992, wherein this order passed an interim order to appoint him provisionally. In pursuance of the interim order of this Court, petitioner was reinstated vide order dated 9.9.92 (Annx. 2). During the pendency of the writ petition as well as appeal, petitioner was served with a charge sheet dated 24.12.92 in respect of the incident dated 20.9.91 under rule 16 of the Rules. He submitted the reply on 12.1.93 and after concluding the inquiry, the Disciplinary Authority converted the inquiry under rule 17 and vide order dated 28.2.94, imposed the punishment of withholding of one annual grade increment without cumulative effect for two year. It may also be pertinent to mention that without waiting the result of the appeal or writ petition, the appointing authority passed the order of confirmation of petitioner vide order dt.2.11.93 (Annx. 5) with effect from 15.10.93. THE writ petition was disposed of by this Court, vide judgment and order dated 12.3.96 (Annx. R/2), directing the appellate authority to decide the appeal within the stipulated period. THE Appellate Authority, vide order dt.15.5.96 (Annx.7), confirmed the order of discharge dt .24.1.92. Hence this petition. APPELLATE ORDER DATED 15.5.96 (Annx. 7) The impugned order dated 15.5.96, purported to have been passed in appeal by the Appellate Authority under the Rules against the order of discharge dated 24.1.92, is certainly without jurisdiction and, therefore, nullity for the reason that discharge order was not passed after holding any inquiry and the impugned order dated 24.1.92 was not an out-come of any inquiry under the Rules. Appeal provided under rule 23 is against the order passed after completing the inquiry either u/R. 16 or 17 of the Rules and imposing the punishment as provided u/R. 14 thus, the order dated 15.5.96 cannot be held to be an order passed under the Rules and, therefore, without jurisdiction. The Hon'ble Supreme Court, in Poona City Municipal Corporation vs. Dattatraya Nagesh Deodher (1), while interpreting the provision under the Bombay Provincial Municipal Corporation Act, 1949, observed as under:- "The benefit of this section would be available to the Corporation only if it was held that this deduction of ten percent, was an act done or purported to be done in pursuance or execution or intended execution of this Act'. We have already held that this levy was not in pursuance or execution of the Act. It is equally clear that in view of the provisions of Section 127(4) (to which we have already referred) the levy could not be said to be `purported to be done in pursuance or execution or intended execution of the Act.' For, what is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act." The Hon'ble Supreme Court, in Municipal Corporation vs. Niyamatullah (2), interpreted Section 135(2) of the Indore Municipal Act, 1909, in the following terms:- "The provisions contained in Sec. 135 of the Indore Municipal Act will be applicable to things done under the Act. It is manifest that in the present case the order of dismissal passed by Shri Ghatpande was beyond his jurisdiction and is, therefore, not an act done under the Act." The aforesaid judgments were reconsidered and approved by the Hon'ble Supreme Court in J.N. Ganatra vs. Morvi Municipality, Morvi (3).
(3.) APPEAL is a creation of statute and it cannot be created by acquiescence of the party or by the order of the Court. (Vide United Commercial Bank Ltd. vs. Their Workmen (4) and Kesar Singh and others vs. Sadhu (5). The finding of a Court or a Tribunal becomes irrelevant and unenforceable/inexecuteable once the forum is found to have no jurisdiction. (Vide State of Gujarat vs. Rajesh Kumar Chiman Lal Barot and Another (6). Jurisdiction cannot be conferred by mere acceptance, acquiescance, consent or by any other means as it can be conferred only by the legislature and conferring a Court or Authority with jurisdiction, is a legislative function. In Union of India vs. Devkinandan Agrawal (7), the Hon'ble Apex Court has observed that "the Court cannot usurp legislative functions. The Court cannot re-write the legislation for the reason that it had no power to legislate. The power of legislation has not been conferred on the Courts." In Karnal Improvement Trust vs. Prakashwanti (8), the Hon'ble Supreme Court has observed that acquiescence does not confer jurisdiction and an erroneous interpretation equally should not be perpetuated and perpetrated defeating of legislative animation. A similar view has been taken in U.P. Rajkiya Nirman Nigam Ltd. vs. Indure Pvt. Ltd. (9). ;